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Friday, January 6, 2012

A matter of privacy -- Introduction

Every so often I read a blog post or hear a news feed with excessive angst and hand wringing about our continued loss of privacy. There are usually references to the nebulous and never defined "Right to Privacy." Where is this so-called right and how did we get it? Is there some written law of privacy? What are the practical reasons for having any concerns about privacy at all? How does privacy impact genealogy?

Let me start by pointing out that there is no such thing as a monolithic right to privacy. Period, no ifs ands or buts. There is a basic confusion between a general right to be left alone from government interference and the folklore surrounding the issue of privacy. At least in the United States, my experience is that people generally expect that they are entitled to a higher level of privacy than any existing laws protect.

Let me give one preliminary, quick example. Let's suppose you were involved in a court case such as a divorce or other family law matter. Let's further suppose that you were involved in a deposition or giving testimony in open court. Imagine that the attorney for the opposing side asked you a very embarrassing and private, personal question right there in public in the court or deposition. Would you be required to answer the question? Without coming up with a specific question and circumstance, I can still say that you will likely be surprised at what could be asked in a court proceeding. You may think your life is private but you would be astonished to find out the judge might not agree with you.

There is much legal and more common social confusion about the concept of privacy. One early statement leading up to the concept was made by Samuel D. Warren and Louis D. Brandeis, later a Supreme Court Judge. The following is an excerpt from the Harvard Law Review, Vol. IV, December 15, 1890, No. 5

That the individual shall have full protection in person and in property is a
principle as old as the common law; but it has been found necessary from time
to time to define anew the exact nature and extent of such protection.
Political, social, and economic changes entail the recognition of new rights,
and the common law, in its eternal youth, grows to meet the new demands of
society. Thus, in very early times, the law gave a remedy only for physical
interference with life and property, for trespasses vi et armis. Then the
"right to life" served only to protect the subject from battery in its various
forms; liberty meant freedom from actual restraint; and the right to property
secured to the individual his lands and his cattle. Later, there came a
recognition of man's spiritual nature, of his feelings and his intellect.
Gradually the scope of these legal rights broadened; and now the right to life
has come to mean the right to enjoy life, -- the right to be let alone; the
right to liberty secures the exercise of extensive civil privileges; and the
term "property" has grown to comprise every form of possession -- intangible,
as well as tangible.

I don't think that very many people equate the modern concept of privacy with the idea of a "right to be let alone." Here is a further quote from Warren and Brandeis, remember this was written in 1890:

Recent inventions and business methods call attention to the next step which
must be taken for the protection of the person, and for securing to the
individual what Judge Cooley calls the right "to be let alone" Instantaneous photographs and
newspaper enterprise have invaded the sacred precincts of private and domestic
life; and numerous mechanical devices threaten to make good the prediction that
"what is whispered in the closet shall be proclaimed from the house-tops." For
years there has been a feeling that the law must afford some remedy for the
unauthorized circulation of portraits of private persons; and the evil of invasion of
privacy by the newspapers, long keenly felt, has been but recently discussed by
an able writer. The alleged
facts of a somewhat notorious case brought before an inferior tribunal in New
York a few months ago, directly involved the consideration of the right of circulating portraits; and
the question whether our law will recognize and protect the right to privacy in
this and in other respects must soon come before our courts for
consideration. [footnotes omitted]

You could make a few substitutions using the words "Internet," "Google," etc. and it would sound like it came right out of today's news. As other writers have suggested, such as the much more recent article by Kent Wada, the Director, Strategic IT and Privacy Policy at the University of California at Los Angeles states in a paper "The Right to Be Let Alone," there are really three distinct issues lumped together as a "right of privacy."

Three interrelated concepts are relevant in this discourse:

Privacy as a civil liberty: safeguarding the privacy of
individuals, which speaks to Brandeis's "right to be let alone" —
freedom from surveillance, from Big Brother, and from the monitoring of
behavior

Data protection: safeguarding the confidentiality of information about individuals

Security: safeguarding the infrastructure — the systems and networks — that hold and transport electronic data and communications

Wada points out that the confusion arises because the word "privacy" is used to mean all three issues. There is a further issue when we confuse the concept of government involvement with personal interrelationships. In other words, we talk about privacy in our day to day communications with friends and family members, but the legal concern of privacy is more of concern with government or at least outside interference rather than simply disclosing personal or family matters.

There is a difference between disclosing something about an argument you had with a family member and your bank account information or medical history.

I promise to get to the impact privacy concerns have on genealogical research, but you might have to have some patience. Meanwhile, you might want to think about what you believe privacy to be and why you believe what you do. Why do you think you have a right to privacy?

2 comments:

Many talk of privacy, but post every thought and every action online and in public and then are outraged in they find that government has the information and may choose to use that information in some legal proceeding against them. If you wish to keep information private, the least you should do is, not share it openly with the world. It is called personal responsibility.